Judgment

Fakkir Mohamed Ibrahim Kalifulla, J.

1. Heard learned Counsel for the parties.

2. Leave granted in SLP (Crl.) 7732 of 2010.

3. By the impugned judgment 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 C.C. No. 758/2005/367/08 on the file of J.M.F.C., 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.

4. 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 Code of Criminal Procedure was required before the prosecution was launched against them. The Division Bench held that by virtue of Section 48 read along with Section 49(1) of the 1974 Act, there was a clear conflict with Sections 415 and 197 of the Code of Criminal Procedure and consequently Section 60 of the 1974 Act would operate and, therefore, the protection claimed by the Appellants Under Section 197 Code of Criminal Procedure cannot be extended to them.

5. Mr. Bhat in his submissions after drawing our attention to Sections 4(2)(5) and 197 of the Code of Criminal Procedure 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 Code of Criminal Procedure and that and 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. Learned Counsel while drawing support from Section 4(2) Code of Criminal Procedure 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 Section197 Code of Criminal Procedure by virtue of application of Section 4(2) Code of Criminal Procedure, the requirement of getting a sanction Under Section 197for prosecuting the Appellants under the 1974 Act was mandatory.

6. 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 concerned authority to file the case against the accused by placing the complaint before the concerned Court 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 straight away take cognizance of an offence de hors the non-compliance of the requirements Under Section 197 Code of Criminal Procedure

7. As against the above submission, Mr. A. Mariarputham, learned senior Counsel for the Respondent by drawing our attention to Section 5 Code of Criminal Procedure 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 of Code of Criminal Procedure and consequently Section 60 of the 1974 Ac