IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 331 of 2001()



1. P.JAYARAM
                      ...  Petitioner

                        Vs

1. STATE OF KERALA
                       ...       Respondent

                For Petitioner  :SRI.T.V.PRABHAKARAN

                For Respondent  :SRI.N.N.SUGUNAPALAN,SC,POLUTION C.BOARD

The Hon'ble MR. Justice THOMAS P.JOSEPH

 Dated :29/09/2008

 O R D E R
                      THOMAS P.JOSEPH, J.
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                     CRL.R.P. No. 331 of 2001
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            Dated this the 29th day of September, 2008

                               O R D E R

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Heard.

2. Perused records.

3. Respondent, Kerala State Pollution Control Board, initiated prosecution against the revision petitioner and others by filing complaint in the court of the Judicial First Class Magistrate, Kolencherry for offences punishable under Sections 43, 44, 47 read with 49 of the Water (Prevention and Control of Pollution) Act, 1974 (for short, "the Act") alleging that the revision petitioner and others discharged effluents which did not conform to the standards laid down by the respondent which amounted to violation of Sections 24, 25 and 26 of the Act and that the discharge of the polluted effluent by the revision petitioner and others through unauthorised outlet violated Sections 25 and 26 of the Act. Petitioner filed Crl.M.P. No.3405 of 2000 claiming that he is an employee of the Government of India and therefore entitled to the protection of Section 197 of the Code of Criminal Procedure (hereinafter referred to as 'the  CRL. R.P. NO.331 OF 2001 -: 2 :- Code'). Since the respondent has not obtained the sanction, prosecution against him is not sustainable. Petitioner also contended that since the occupier of the premises is made an accused, it is not necessary to array its employees also as accused. He requested the trial court to drop all further proceedings. That petition was opposed by the respondent contending that the first accused in the case, M/s. F.A.C.T. Ltd., is only a Company in which the Government of India holds more than 51% shares and that is is not a Government Undertaking and hence its employees are not entitled to the protection under Section 197 of the Code. The further contention that since the occupier has been made accused, its employees need not be arrayed as accused is factually and legally incorrect. The learned Magistrate after hearing both sides rejected the contentions raised by the petitioner an dismissed the petition (Crl.M.P No.3405 of 2000). The legality, regularity and propriety of that order is under challenge.

4. First accused, M/s.FACT Ltd. is only a Company in which Government of India holds more than 51% shares. It is not a Government Undertaking. It is true that the revision petitioner is an employee of the Government of India but, the offence is said to have been committed in relation to his employment in the first accused (M/s. FACT Ltd.) He was concededly on deputation. At the relevant time he was not in the service of the Government of India but was in  CRL. R.P. NO.331 OF 2001 -: 3 :- the service of the first accused and his salary was being paid by the first accused. In such situation, sanction under Section 197 of the Code is not required for prosecution. This is authoritatively held in Mohd. Hadi Raja v. State of Bihar (1998 SCC (Cri.) 1265 and Sharma v. Abhimanyu (2005 (4) KLT 738 (SC). Therefore, the objection that prosecution without obtaining sanction is not sustainable, lacks merit and substance.

5. There is no merit in the further contention that because the occupier has been arrayed as accused, its employees need not be arrayed as accused.

6. There is no merit in this revision petition. It is only to be dismissed.

Resultantly, this revision petition fails and it is accordingly dismissed. Office is directed to send the records to the court below forthwith. The court below shall expedite the trial and disposal of the case.

Criminal Miscellaneous Petition No.1444 of 2001 shall stand dismissed.

THOMAS P.JOSEPH, JUDGE.

vsv  CRL. R.P. NO.331 OF 2001 -: 4 :- THOMAS P.JOSEPH, J.

=================== CRL.R.P. NO.331 OF 2001 =================== O R D E R 29TH SEPTEMBER, 2008