The provisions of the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981, which require prior written sanction from the respective Boards for taking cognizance of offenses thereunder, prevail over the general provisions of the Criminal Procedure Code, 1973, and oust the jurisdiction of magistrates to proceed with inquiries under Section 133 of the CrPC in respect of acts constituting offenses under these special Acts.

K. L. SHRIVASTAVA, J.

( 1 ) THIS revision petition is directed against the order dated 3-1-1987 passed by the learned Sub-Divisional Magistrate, Khachrod in Criminal Case No. 1 of 1985 whereby the petitioner's application under S. 133 of the Criminal Procedure Code, 1973 (for short 'the Code') has been dismissed.

( 2 ) CIRCUMSTANCES giving rise to the revision petition are these. The petitioner laid information for action under S. 133 of the Code before the learned S. D. M. on the following allegations. The Gwalior Rayon Silk Manufacturing and Weaving company, Indi Bhai Parikh and 18 others connected with the Grasim, the chemical factories and the hospital run by the Janseva Trust are responsible for polluting the air as also the water of river Chambal near Birlagram and this has led to the death of children, animals and the water-creatures. It was also stated that the pollution causes various deceases among the people and crops are also damaged.

( 3 ) THE non-applicants opposed the petitioner's prayer. It was contended that in respect of the acts constituting offences under the Water (Prevention and Control of Pollution) Act, 1974 (for short 'the Water Act') and the Air (Prevention and Control of Pollution) Act, 1981 (for short 'the Air Act') previous written sanction of the State Boards constituted thereunder is necessary. These Acts deal with pollution by trade or industry.

( 4 ) IT is not in controversy that on the date of which the information was laid before the learned S. D. M. the Water Act and the Air Act had come into force.

( 5 ) THE learned S. D. M. upheld the non applicants' contention and rejected the petitioner's prayer.

( 6 ) AGGRIEVED by the order aforesaid the petitioner has come to this Court in revision.

( 7 ) THE point for consideration is whether the learned S. D. M. , had jurisdiction to proceed with the inquiry.

( 8 ) IT may be stated at the out set that point of jurisdiction can be examined at the very inception. In the decision in Mangharam's, AIR 1965 Raj 210 it has been held that sanction under Sec. 197 of the Code of the requisite authority is condition precedent for taking cognizance and preliminary objection as to maintainability of the action can be gone into for in determining such a question the Court does not inquire about the truth or falsehood of the controversy but examines the question whether the condition necessary for the cognizance of the case is satisfied or not. Such an inquiry is not in the nature of the trial because it does not involve any decision on merits of the case.

( 9 ) REGARDING the relevant offences and the penalties under the Water Act, Ss. 24 and 43 thereof and regarding offences and penalties under the Air Act Ss. 22 and 37 may usefully be perused.

( 10 ) THE provisions embodied in S. 49 (1) of the Water Act and S. 43 of the Air Act provide that cognizance of the offences thereunder cannot be taken in the absence of written sanction of the respective Boards. Section 60 of the Water Act, regarding overriding effect of its provisions reads thus :- "the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act. " corresponding provision in the Air Act is in Section 52.

( 11 ) SECTION 26 of the General Clauses Act, 1898 (Central) relates to offences, (act or omission) falling under two enactments. It is to be applied unless the intention to repeal the prior law is clear by express provision to that effect or by implication arising out of incompatibility to that effect between the two statutes. In the instant case it has no application as there is no prosecution in respect of any offence.

( 12 ) IN passing, it may be pointed out that the express legislative mandate regarding previous sanction cannot be permitted to be whittled down by labelling the act complained of as an offence, not under the special Act but under the I. P. C. Prosecution for an act which is an offence under the special Act, by

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