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      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 16th DAY OF JUNE 2020

                        BEFORE

       THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA

           CRIMINAL PETITION NO.5159 OF 2016

BETWEEN

SRI.N. CHANDRASHEKAR
CHIEF OFFICER
HOSADURGA TOWN MUNICIPAL COUNCIL
HOSADURGA,
TOWN MUNICIPAL COUNCIL
HOSADURGA TOWN
CHITRADURGA DISTRICT
                                           ...PETITIONER

(BY SRI: K N DAYALU, ADVOCATE)

AND

KARNATAKA STATE POLLUTION CONTROL BOARD
PARISAR BHAVAN
#40, CHURCH STREET
BANGALORE-560001

BY ITS ENVIRONMENTAL OFFICER
SRI BHIM SINGH GOWGI
KARNATAKA STATE POLLUTION CONTROL BOARD
REGIONAL OFFICER
CHITRADURGA
                                       ...RESPONDENT

(BY SMT: M R VANAJA, ADVOCATE)
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     THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C
PRAYING TO QUASH THE ENTIRE PROCEEDINGS AGAINST THE
PETR. IN C.C.NO.526/2015 ON THE FILE OF THE PRL. CIVIL
JUDGE AND JMFC, HOSADURGA, CHITRADURGA DISTRICT.

     THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 05.06.2020 AND COMING ON FOR
PRONOUNCMENT OF ORDER THROUGH VIDEO CONFERENCE
THIS DAY, THE COURT MADE THE FOLLOWING:-

                              ORDER

The relief claimed in the petition is to quash the entire proceedings pending against the petitioner in C.C.No.526/2015 on the file of Prl. Civil Judge and JMFC, Hosadurga, Chitradurga.

2. Essential facts necessary for consideration of the petition are as follows:-

The respondent herein, namely, The Karnataka State Pollution Control Board instituted a complaint proceedings against Hosadurga Town Municipal Council, Hosadurga by its Chief Officer (N. Chandrashekar) petitioner herein under section 200 Cr.P.C. r/w section 44 and 49 of Water (Prevention and Control of Pollution) Act, 1974 (hereinafter referred to as 'Water Act' for short). On service of process, petitioner filed an 3 application under section 245(2) Cr.P.C. praying to discharge him of the alleged offences, on the ground that the complainant did not issue statutory notice to him as required under section 49(1) (b) of the Water Act before instituting the private complaint; secondly, the complainant did not obtain previous sanction from the Government as required under section 197 Cr.P.C. and that there was no material to frame charge against the petitioner.

3. Before the learned magistrate, petitioner relied on the decision of this Court in the case of Sri. D.H. Raya Vs. Karnataka State Pollution Control Board and another rendered in Crl.P.No.831/2007 dated 18.01.2012 in support of his contention that institution of criminal action without previous sanction under section 197 Cr.P.C. and without issuance of statutory notice as contemplated under section 49(1) (b) of the Water Act is bad in law. However, the learned magistrate by its order dated 27.06.2016 dismissed the application holding that as per section 48 of the Water Act, complaint against the petitioner/accused is maintainable without previous sanction from the Government 4 and it is for the petitioner/accused to show before the Court that the offence was committed without his knowledge or that he exercised all due diligence to prevent commission of such offence.

4. On dismissal of this application, the petitioner/accused has preferred the instant petition under section 482 Cr.P.C. seeking to quash the entire proceedings on the very same grounds. In the course of argument, learned counsel has strongly placed reliance on the decision rendered by this Court in Shri D.H. Raya Vs. Karnataka State Pollution Control Board referred above as well as the decision of the Hon'ble Supreme Court In Re:Bhavani River Vs. Sakthi Sugars Ltd., (1998) 2 SCC 601 and emphasized that in the light of the proposition laid down in the above decision and for non-compliance of statutory requirement contemplated under section 49(1) (b) of the Water Act, the proceedings initiated against the petitioner amount to abuse of process of Court and therefore the same is liable to be quashed.

5. Learned counsel appearing for the respondent however argued for dismissal of the petition contending that in view of clear provision of sections 44 and 49 of the Water Act, continued act of Hosadurga Town Municipal Council to discharge untreated sewage into natural drain and low lying area without subjecting to treatment clearly attract the penal provisions under sections 44 r/w 25 of the Water Act and that prior to initiation of the proceedings, a statutory notice was also issued to Chief Officer, Hosadurga under the provision of section 31(2) of the Water Act and therefore, there is no illegality whatsoever either in the institution of the proceedings or in the matter of taking cognizance of the alleged offences by the magistrate and thus sought for dismissal of the petition.

6. I have bestowed my careful thought to the contentions urged by learned counsel for the parties and have carefully scrutinized the material on record.

7. The material allegations leveled against the accused is that the Municipal Council has been discharging sewage from the entire Town into the natural nalla(canal, stream etc.,) and that 6 the TMC was bound to adopt/establish proper treatment plant and after treatment only, it had to allow the sewage to flow into natural stream. Yet, without treatment and without obtaining valid consent, the Town Municipal Council has been discharging the sewage and hence, the complainant issued notice of intention in Form No.XII to the Chief Officer, Hosadurga under the provision of section 31(1) of Water Act. Since the accused failed to abide by the said notice, the petitioner/accused has rendered himself liable for prosecution under section 48 of the Water Act.

8. Learned counsel for the petitioner has based his argument mainly on the decision of this Court in Crl.P.No.831/2007 in the case of Shri D.H. Raya v. Karnataka State Pollution Control Board and another wherein it has been held that in view of the legal bar contained in section 48 of the Water Act, proceedings against the officer of a Government Department cannot be continued. In laying down the said proposition, the Single Judge of this Court relied on the earlier Division Bench judgment of this Court in Crl.A.No.755/2010 in 7 V.C. CHINNAPPA GOUDAR v. KARNATAKA STATE POLLUTION CONTROL BOARD AND ANOTHER, (2015) 14 SCC 535, arising out of W.P.(C).No.30610/2008. Both these decisions came up for consideration of the Hon'ble Supreme Court in the case of KARNATAKA STATE POLLUTION CONTROL BOARD v. B. HEERA NAIK AND OTHERS, 2019, SCC ONLINE SC 1528, wherein the Hon'ble Supreme Court dealing with the specific issue as to "Whether the Municipal Commissioner of City Municipal Council or Chief Officer of City Municipal Council are Head of the Department of any department of Government so as to answer the charges for the offences and are liable for the offence under section 48, observed that the judgment of this Court in Crl.A.No.755/2010- V.C. Chinnappa Goudar v. Karnataka State Pollution Control Board and Another, wherein the Division Bench judgment of the High Court has been affirmed and has laid down the ratio to the effect that sanction under section 197 Cr.P.C. was not required for proceeding under section 49 of the Water Act. Although reference under section 48 has been made in the said judgment, but there was no further consideration with regard to section 48, whereas the Patna High Court in Criminal 8 Misc No.7268 of 2005- ARUN KUMAR SINGH v. THE STATE OF BIHAR while noticing section 141, specifically held that the definition of Company as given therein is wider than the definition in the Companies Act and includes the body corporate. This view has been affirmed by the Hon'ble Supreme Court in the above decision and ultimately it has held that section 47 could be resorted to for offences by body corporate and Karnataka State Pollution Control Board by filing a complaint before the Magistrate for taking cognizance of the offence under section 49 did not commit any error.

In the light of this decision, the legal contention urged by the learned counsel for the petitioner that the prosecution instituted against him is legally untenable is liable to be rejected. Insofar as the factual contention urged by learned counsel for the petitioner with regard to issuance of notice is concerned, on perusal of copy of the complaint produced at Annexure-A, it is noticed that clear averments are made in para 7 of the complaint, wherein it is stated that the complainant issued a notice in form No.XII to the Chief Officer, Town 9 Municipal Council, Hosadurga under the provisions of section 31(2) of the Water Act. As such, even this ground is not available to the petitioner to challenge the action initiated against him in his capacity as the head of the Department at the relevant time. As a result, the petition fails and is accordingly dismissed.

Sd/-

JUDGE *mn/-