1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 06TH DAY OF SEPTEMBER 2019

                          BEFORE

        THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA

            CRIMINAL PETITION NO.5314 OF 2016

BETWEEN:

V.T.WILSON
S/O LATE V.M.THOMAS,
AGED ABOUT 51 YEARS,
PRESENTLY WORKING AS THE
CHIEF OFFICER, T.NARASIPURA
TOWN PANCHAYATH,
T.NARASIPURA,
MYSORE DISTRICT-570016.                ... PETITIONER

(BY SRI: NITYANAND V NAIK, ADVOCATE)

AND:

THE KARNATAKA STATE POLLUTION CONTROL BOARD
REGIONAL OFFICE-2, MYSORE (RURAL)
PLOT NO.436-D, HEBBAL INDUSTRIES AREA,
KRS ROAD, METAGALLI,
MYSORE-570 016                         ... RESPONDENT

(RESPONDENT SERVED AND UNREPRESENTED)

      THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE
ENITRE PROCEEDINGS IN PCR NO.17/2014 NOW REGISTERED AS
C.C.NO.85/2014 FOR THE OFFENCE PUNISHABLE UNDER SECTIONS
24,25 R/W 43,44 OF WATER PREVENTION AND POLLUTION CONTROL,
ACT 1974 PENDING ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC,
T.NARASIPURA VIDE ANNEXURE-A AND QUASH THE PRIVATE
                                2


COMPLAINT     IN   PCR.NO.17/2014    NOW    REGISTERED    AS
C.C.NO.85/2014 FOR THE OFFENCE PUNISHABLE UNDER SECTIONS
24,25 R/W 43,44 OF WATER PREVENTION AND POLLUTION CONTROL
ACT, 1974 PENDING ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC,
T.NARASIPURA VIDE ANNEXURE-B.

     THIS CRL.P COMING ON FOR ADMISSION THIS DAY, THE
COURT MADE THE FOLLOWING:-


                           ORDER

Petitioner/accused No.2 in this petition has sought to quash the entire proceedings in C.C.No.85/2014 on the file of learned Senior Civil Judge and JMFC, T.Narasipura, for the alleged offences punishable under sections 24 and 25 of the Water Prevention and Pollution Control Act, 1974 (hereinafter referred to as the "Water Act") punishable under sections 43 & 44 of the Water Act.

2. The material allegations against the petitioner is that, petitioner/accused No.1 is a local body established in accordance with the provisions of the Karnataka Municipality Act, 1964 and accused No.2 is working as Chief Officer of accused No.1. The accused are under legal obligation to provide UGD system and to treat the sewage effluent generated within the 3 limits of Town Panchayat before discharging into Kabini river water, in order to maintain the wholesomeness of water, in accordance with the provisions of the Karnataka Municipality Act of 1964 and sections 24, 25 and 26 of the Water Act.

3(i) The Karnataka State Pollution Control Board ("KSPC Board" for short) - respondent herein filed a complaint under section 200 Cr.P.C., seeking action against Town Panchayat, T.Narasipura (accused No.1) and petitioner herein (accused No.2) alleging that, pursuant to the various complaints received by the respondent on pollution of Kabini River due to discharge of untreated sewage resulting in pollution of river water adversely affecting the public health, the Assistant Environmental Officer of the Regional Officer conducted the inspection on 28.11.2012 and after giving notice to accused No.2, mahazar was conducted.

(ii) During the mahazar, samples were drawn near the new bridge i.e., from upstream of sewage confluence point of Kabini river, sewage discharged to Kabini river near new bridge and downstream of sewage confluence point of Kabini river and were 4 sent to the Karnataka State Pollution Control Board, Regional Laboratory, Mysore for analysis. The analysis report received from the State Board Analyst on 10.12.2012 disclosed that the levels of suspended solids and BOD were not confirming to the standards stipulated by the Board. It was observed that sewage and sullage generated from the Town Panchayat area was being discharged through open drains into Kabini River area near the new bridge and polluting the river water and causing health hazard which is the main source of drinking water to the town panchayat and other downstream villages. As a result, accused have committed an offence contravening the provisions of Sections 24 and 25 of the Water Act. Thus the complainant sought prosecution of petitioner/accused No.2 and accused No.1 for the above offences punishable under sections 43 and 44 of the Water Act.

4. Learned Magistrate took cognizance of the offences and issued summons to the petitioner/accused No.2 and accused No.1. The impugned order of summons and initiation of 5 proceedings against the petitioner herein (accused No.2) have been questioned before this court on the following grounds:-

(i) The order taking cognizance and issuance of summons by learned Magistrate is beyond the facts and circumstances of the case and the law applicable to the facts of the case;

(ii) Petitioner being a public servant has discharged his duties within the framework of duties and responsibilities entrusted to him under the Act; and therefore, learned Magistrate was bound by section 197 of Cr.P.C., not to take cognizance of the above offences without the previous sanction of the competent authority. The complaint against the Town Panchayat is not preceded with a sanction;

(iii) The allegations made in the complaint pertains to flow of sewage into the river and failure of accused in taking steps to construct Under Ground Drainage system and Sewage Treatment Plant for proper disposal of sewage generated within the limits of Town Panchayat. Primarily, construction of Under Ground Drainage system and Sewage Treatment Plant is a duty vested with Karnataka Urban Water Supply and Drainage Board. 6

(iv) The officers of Town Panchayat have no power to exercise any control over the storm water drains or flow of sewage through the same;

(v) The pollutants are being discharged into Kabini river through other villages and since pollution had been caused by other villages, not coming under jurisdiction of accused No.1 - Town Panchayath, as per the dictum laid down by the Hon'ble Supreme Court, "polluter alone" is liable to be prosecuted;

(vi) Petitioner/accused No.2 cannot be held liable for non-implementation of any projects envisaged by the State even if it resulted in violation of any rule of law;

(vii) Petitioner/accused No.2 cannot be held vicariously liable for the acts, commission or omission of the Town Panchayat;

(viii) The order of taking cognizance does not indicate application of mind by learned Magistrate. Likewise, order of issuance of process also does not indicate subjective satisfaction of learned Magistrate about the sufficient ground for issue of process;

(ix) Section 48 of the Water Act creates legal bar on instituting a complaint against petitioner as alleged offences were committed without his knowledge;

(x) In order to attract provisions of sections 24 and 25 of the Water Act, the accused should have knowingly caused or permitted any poisonous, noxious or polluting matter directly into any stream or well. In the absence of any material to show that the petitioner herein has knowingly caused or permitted discharge of the pollutants in the river, action initiated against petitioner is impermissible and unsustainable;

(xi) Respondent has failed to exercise power under section 17 of the Water Act by insisting the Town Panchayath, T.Narasipura to insist on sewerage disposal mechanism; and

(xii) Respondent has ample powers as contemplated under section 18 of the Water Act to issue necessary directions or had more than ample powers as contemplated under section 23 of the Water Act to inspect the polluting areas and to prevent the situation. Respondent having failed to perform its duties cannot be permitted to prosecute the petitioner. 8

5. Learned counsel appearing for the petitioner has argued in line with the above contentions and has emphasized that that the prosecution of the petitioner without prior sanction under section 197 Cr.P.C. and section 283 of Karnataka Municipalities Act, 1964 ("Act" for short) is illegal, untenable and impermissible. Learned Magistrate has taken cognizance of the penal provisions, but not of alleged violation under sections 24 and 25 of the Water Act. As such, learned Magistrate had no jurisdiction to proceed against the petitioner. The allegations made in the complaint, if read in entirety, would disclose that the alleged offences were committed by the Department. Petitioner herein was not holding the responsible position in the Department as on the date of alleged commission of offences. Hence, implication of present petitioner for the alleged offences is wholly illegal and is liable to be quashed.

6. Placing reliance on the decision of the Hon'ble Supreme court in M.C.Mehta vs. Kamal Nath and Others, (2002) 3 SCC 653, learned Counsel has emphasized that the averments made in the complaint and the material produced in support 9 thereof clearly goes to show that the pollutants are being discharged into the Kabini river by other villages which fact is known to complainant/respondent. Complainant itself is empowered under the Act to take action against the persons and agencies which cause pollution of water bodies. Hon'ble Supreme Court has laid down "Polluter Pays" principle and in view of the said proposition of law, once the activity carried on is found hazardous or inherently dangerous, only the person carrying on such activity is liable to make good the loss caused to any other person by his activity irrespective of the fact whether he took reasonable care while carrying on his activity. In view of the above position, the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environment of the damaged environment is on the polluter and under the said circumstances, the prosecution instituted against the petitioner is wholly illegal and contrary to the provisions of the Karnataka Municipalities Act as well as Water Act, 1974. 10

7(i) Meeting this argument, learned counsel for respondent has placed reliance on the decision of the Hon'ble Supreme Court in V.C.CHINNAPPA GOUDAR vs. KARNATAKA STATE POLLUTION CONTROL BOARD & Another in Criminal Appeal No.755/2010 dated 10.3.2015 and submitted that the controversy relating to requirement of sanction for prosecution of violation of provisions of the Water Act is set at rest by the Hon'ble Apex Court in the above decision and it is held that, "There is no specific provision providing for any sanction to be secured for proceeding against a public servant under the 1974 Act. In the light of the said statutory prescription contained in section 48, there is no scope for invoking section 197 Cr.P.C., even though the accused are public servants."

(ii) Further, referring to section 283 of the Karnataka Municipality Act, learned counsel has emphasized that, in view of specific allegations made against the petitioner that petitioner being the public servant, has failed to discharge the obligation cast on him under the Karnataka Municipality Act, even the provisions of section 283 of Karnataka Municipality Act is not applicable to the facts of the case. In other words, it is the 11 submission of learned counsel for respondent that the requirement of previous sanction of the Municipal Council under section 283 of Karnataka Municipality Act is contemplated only when the Municipal Council or any of its officers are sought to be prosecuted in respect of the act done by them in good faith or intended to be done under the Karnataka Municipality Act or any rule or regulation made thereunder. Since the petitioner is facing accusations of failure to prevent the pollutants entering into the lakes and water bodies, requirement of section 283 of Karnataka Municipality Act is also required under the instant set of facts.

(iii) Further, referring to the provisions of sections 193, 194, 197, 199, 201 and 203 the Karnataka Municipalities Act, 1964 learned counsel submitted that accused are under legal obligation to provide UGD system and to treat the sewage effluent generated within the limits of Town Panchayat before discharging into Kabini river water, in accordance with the provisions of the Karnataka Municipalities Act under the said circumstances, Town Panchayat having failed to prevent discharge of sewage and sullage effluent into Kabini river, in 12 spite of directions issued by the complainant/KSPC Board, accused No.1 -Town Panchayat and its officers are liable to face prosecution for violation of sections 24 and 25 of the Water Act and thus, sought to dismiss the petitions.

8. I have bestowed my careful thought to the rival contentions urged at the Bar with reference to the relevant provisions of law and the decisions relied on by the respective counsels.

9. The material allegations leveled against the petitioner is that the Town Panchayath, T.Narasipura and its officials failed to prevent pollution of Kabini river. In the light of these allegations, the questions that arises for consideration are, (1) Whether failure of accused No.1 -

Town Panchayat, T.Narasipura, to prevent the pollutants to enter into Kabini river, would constitute violation of sections 24 and 25 of the Water Act?

(2) Whether the petitioner could be held vicariously liable for the acts of commission and omission of accused No.1?

10. Section 24 of the Water Act deals with prohibition on use of stream or well for disposal of polluting matter, etc. It reads as under:-

24. Prohibition on use of stream or well for disposal of polluting matter, etc.-- (1) Subject to the provisions of this section,--

a) no person shall knowingly cause or permit any poisonous, noxious or polluting matter determined in accordance with such standards as may be laid down by the State Board to enter (whether directly or indirectly) into any 1[stream or well or sewer or on land]; or

b) no person shall knowingly cause or permit to enter into any stream any other matter which may tend, either directly or in combination with similar matters, to impede the proper flow of the water of the stream in a manner leading or likely to lead to a substantial aggravation of pollution due to other causes or of its consequences.

(2) A person shall not be guilty of an offence under sub-section (1), by reason only of having done or caused to be done any of the following acts, namely:--

a) constructing, improving or maintaining in or across or on the bank or bed of any stream any building, bridge, weir, dam, sluice, dock, pier, drain or sewer or other permanent works which he has a right to construct, improve or maintain;

b) depositing any materials on the bank or in the bed of any stream for the purpose of reclaiming land or for supporting, repairing or protecting the bank or bed of such stream 14 provided such materials are not capable of polluting such stream;

c) putting into any stream any sand or gravel or other natural deposit which has flowed from or been deposited by the current of such stream;

d) causing or permitting, with the consent of the State Board, the deposit accumulated in a well, pond or reservoir to enter into any stream.

(3) The State Government may, after consultation with, or on the recommendation of, the State Board, exempt, by notification in the Official Gazette, any person from the operation of sub-section (1) subject to such conditions, if any, as may be specified in the notification and any condition so specified may by a like notification be altered, varied or amended.

25. Restrictions on new outlets and new discharges.--(1) Subject to the provisions of this section, no person shall, without the previous consent of the State Board,--

a) establish or take any steps to establish any industry, operation or process, or any treatment and disposal system or any extension or addition thereto, which is likely to discharge sewage or trade effluent into a stream or well or sewer or on land (such discharge being hereafter in this section referred to as discharge of sewage); or

b) bring into use any new or altered outlet for the discharge of sewage; or

c) begin to make any new discharge of sewage: Provided that a person in the process of taking any steps to establish any industry, operation or process immediately before the commencement of the Water 15 (Prevention and Control of Pollution) Amendment Act, 1988, for which no consent was necessary prior to such commencement, may continue to do so for a period of three months from such commencement or, if he has made an application for such consent, within the said period of three months, till the disposal of such application.

(2) An application for consent of the State Board under sub-section (1) shall be made in such form, contain such particulars and shall be accompanied by such fees as may be prescribed.] (3) The State Board may make such inquiry as it may deem fit in respect of the application for consent referred to in sub-section (1) and in making any such inquiry shall follow such procedure as may be prescribed.

(4) The State Board may--

(a) grant its consent referred to in sub-section (1), subject to such conditions as it may impose, being--

i. in cases referred to in clauses (a) and (b) of sub-section (1) of section 25, conditions as to the point of discharge of sewage or as to the use of that outlet or any other outlet for discharge of sewage;

ii. in the case of a new discharge, conditions as to the nature and composition, temperature, volume or rate of discharge of the effluent from the land or premises from which the discharge or new discharge is to be made; and iii. that the consent will be valid only for such period as may be specified in the order, and any such conditions imposed shall be binding on any person establishing or taking any steps to establish any industry, operation or 16 process, or treatment and disposal system of extension or addition thereto, or using the new or altered outlet, or discharging the effluent from the land or premises aforesaid; or

b) refuse such consent for reasons to be recorded in writing.

(5) Where, without the consent of the State Board, any industry, operation or process, or any treatment and disposal system or any extension or addition thereto, is established, or any steps for such establishment have been taken or a new or altered outlet is brought into use for the discharge of sewage or a new discharge of sewage is made, the State Board may serve on the person who has established or taken steps to establish any industry, operation or process, or any treatment and disposal system or any extension or addition thereto, or using the outlet, or making the discharge, as the case may be, a notice imposing any such conditions as it might have imposed on an application for its consent in respect of such establishment, such outlet or discharge.

(6) Every State Board shall maintain a register containing particulars of the conditions imposed under this section and so much of the register as relates to any outlet, or to any effluent, from any land or premises shall be open to inspection at all reasonable hours by any person interested in, or affected by such outlet, land or premises, as the case may be, or by any person authorised by him in this behalf and the conditions so contained in such register shall be conclusive proof that the consent was granted subject to such conditions.] (7) The consent referred to in sub-section (1) shall, unless given or refused earlier, be deemed to have been given unconditionally on the expiry of a period of four months of the making of an application in this behalf complete in all respects to the State Board. 17

(8) For the purposes of this section and sections 27 and 30,--

a) the expression "new or altered outlet" means any outlet which is wholly or partly constructed on or after the commencement of this Act or which (whether so constructed or not) is substantially altered after such commencement;

b) the expression "new discharge" means a discharge which is not, as respects the nature and composition, temperature, volume, and rate of discharge of the effluent substantially a continuation of a discharge made within the preceding twelve months (whether by the same or a different outlet), so however that a discharge which is in other respects a continuation of previous discharge made as aforesaid shall not be deemed to be a new discharge by reason of any reduction of the temperature or volume or rate of discharge of the effluent as compared with the previous discharge.

It is significant to note that the expression used in section 24 that, "no person shall knowingly cause or permit any poisonous, noxious or polluting matter determining in accordance with such standard as may be laid down by the State Board to enter into any stream or well or sewer or on land". It is argued, that petitioner has not caused or permitted any such pollutants to enter into the lakes and there being no such allegations in the complaint, the very invocation of provisions of sections 24 and 18 25 of the Water Act is not tenable. In other words, the contention of learned counsel appearing for petitioner is that, mere failure to prevent the pollution of water bodies does not fall within the ambit of section 24 or section 25 of the Water Act. Referring to section 17 of the Water Act, learned counsel has emphasized that, in view of said provision, inspection of sewage or trade effluents and taking action for prevention, control or abatement of discharges of waste into streams or wells under section 17(1)(l) of the Water Act is the essential function of respondent - KSPC Board. In view of the said provision, the respondent - KSPC Board cannot shift the burden on accused No.1 - Town Panchayat and on that pretext, the respondent - KSPC Board having failed to prevent the pollution of the aforesaid lakes, cannot proceed against Town Panchayat.

11. This argument, in my view, is misconceived and contrary to the scheme of the Karnataka Municipalities Act as well as the provisions of Water Act. In this regard, it may be relevant to refer to sections 193, 194, 197, 199, 201, 203 of the 19 Karnataka Municipality Act. These provisions are extracted herebelow:-

193. Municipal control over drains, etc.--(1) All sewers, drains, privies, water-closets, house- gullies and cesspools within the [municipal area] shall be under the survey and control of the municipal council.

(2) All covered sewers and drains, all cesspools, whether public or private, shall be provided by the municipal council or other person to whom they severally belong, with proper traps, or other coverings or means of ventilation and the municipal council may, by written notice, call upon the owner of any such covered sewers, drains or cesspools to make provision accordingly.

194. Powers for making drains.--(1) In order to carry out any drainage scheme, it shall be lawful for a municipal council to carry any drain, sewer, conduit, tunnel, culvert, pipe or water-course through, across or under any street or any place laid out as or intended for a street, or under any cellar or vault which may be under any street, and, after giving reasonable notice in writing to the owner or occupier, into, through or under any land whatsoever within the [municipal area] (2) The municipal council or any officer appointed by it for such purpose may enter upon and construct any new drain in the place of an existing drain in any land wherein any drain vested in the municipal council has been already constructed, or may repair or alter any drain vested in the municipal council.

(3) In the exercise of any power under this section, no un-necessary damage shall be done, and compensation, which shall, in case of dispute, be ascertained and determined in the manner provided in section 268 shall be paid by the municipal council to any person who sustains damage by the exercise of such power.

197. Right to carry drain through land or into drain belonging to other persons.--(1) If the owner or occupier of any [building or vacant land] desire to connect the same with any municipal drain by means of a drain to be constructed through land, or to be connected with a drain, belonging to or occupied by or in the use of some other person, he may make a written application in that behalf to the Municipal Commissioner or Chief Officer. (2) Thereupon the Municipal Commissioner or the Chief Officer after giving to such other person a reasonable opportunity of stating any objection to such application may, if no objection is raised or if any objection which is raised in his opinion is insufficient, by an order in writing authorise the applicant to carry his drain into, through, or under the said land, or into the said drain, as the case may be, in such manner and on such conditions as to the payment of rent or compensation, and as to the respective responsibilities of the parties for maintaining, repairing, flushing, clearing and emptying the said drains as may appear to him to be adequate and equitable.

(3) Every such order shall be a complete authority to the person in whose favour it is made, or to any agent or other person employed by him for this purpose, after giving or tendering to the owner, occupier or user of the said land or drain the compensation or rent, if any, specified in the said order, and otherwise fulfilling as far as possible the conditions of the 21 said order, and after giving to the said owner, occupier, or user reasonable notice in writing, to enter upon the land specified in the said order with assistants and, workmen at any time between sunrise and sunset and, subject to the provisions of this Act, to do all such work as may be necessary,--

a) for the construction or connection of the drain, as may be authorised by the said order;

b) for renewing, repairing, or altering the same as may be necessary from time to time; or

c) for discharging any responsibility attaching to him under the terms of the order as to maintaining, repairing, flushing, cleaning or emptying the said drain or any part thereof.

(4) In executing any work under this section as little damage as possible shall be done, and the owner or occupier of the [buildings or vacant lands] for the benefit of which the work is done, shall,--

a) cause the work to be executed with the least practicable delay;

b) fill in, reinstate and make good at his own cost and with the least practicable delay the ground or any portion of any building or other construction opened, broken up or removed for the purpose of executing the said work; and

c) pay compensation to any person who sustains damage by the execution of the said work.

199. Provision of privies, etc.--(1) In case the municipal council is of opinion that any privy, or cesspool, or additional privies, or cesspools, should be provided in or on any [building or vacant land], or shifted or removed from any [building or vacant 22 land] or, in any [municipal area] in which a water- closet system has been introduced, that water closets should be substituted for the existing privies in or on any [building or vacant land], or that additional water-closets should be provided therein or thereon, the municipal council may, by written notice, call upon the owner of such [building or vacant land] to provide such privies, cesspools or water-closets as the municipal council may deem proper.

(2) The municipal council, may, by written notice, require any person or persons employing workmen or labourers exceeding twenty in number, or owning or managing any market, school or theatre or other place of public resort, to provide such latrines and urinals as the municipal council may direct, and to cause the same to be kept in proper order, and to be daily cleansed.

(3) The municipal council may, by written notice, require the owner or occupier of any land upon which there is a privy or urinal to have such privy or urinal shut out, by a sufficient roof and a wall or fence, from the view of persons passing by or resident in the neighborhood, or to alter as it may direct any privy-door or trap-door which opens on to any street, and which it deems to be a nuisance.

201. Power to close existing private drains.-- When any [building or vacant land] within the [municipal area] has a drain communicating with any cesspool or sewer, the Municipal Commissioner or Chief Officer, if he considers that such drain, though it may be sufficient for the drainage of such [building or vacant land] and though it may be otherwise unobjectionable, is not adapted to the general sewerage of the locality, may, subject to the control of the standing committee, close such drain and such cesspool or sewer, whether they are or are not on land vested in the municipal council, on providing a drain or drains equally effectual for the drainage of such [building or vacant land], and 23 the Municipal Commissioner or Chief Officer may, subject as aforesaid do any work necessary for the purpose.

203. Encroachment on municipal drains, etc.-- (1) Whoever, without the written consent of the municipal council first obtained, makes or causes to be made any drain into or out from any of the sewers or drains vested in the municipal council, shall be punished with fine which may extend to twenty-five rupees, and the municipal council may, by written notice, require such person to demolish, alter, re-make or otherwise deal with such drain as it may think fit.

(2) No building shall be newly erected or rebuilt over any sewer, drain, culvert or gutter vested in the municipal council without the written consent of the municipal council, and the municipal council may, by written notice, require the person who may have erected or rebuilt such building to pull down or otherwise deal with the same as it may think fit.

12. In the backdrop of the above provisions of the Act, if the averments made in the complaint and the allegations made therein are perused, the specific case of the respondent - KSPC Board is that, accused No.1 - Board and its officials have failed to discharge the obligation cast on them under the various provisions of the Act. Undeniably, in view of the above provisions, all drains and sewers having vested with the Town Panchayat and there being clear allegations that the polluting 24 material having been let into the river through these sewers or drains, even though the pollutants are let into the drains by various other agencies like other villages not coming under Town Panchayat of T.Narasipura, yet on account of failure of Town Panchayat, T.Narasipura to prevent the flow of pollutants into the Kabini river, it has to be held that accused No.1 - Town Panchayat has knowingly permitted the pollutants to enter into Kabini river thereby making out contravention of sections 24 and 25 of the Water Act. In the light of these discussions, the contention urged by learned counsel for petitioners that accused No.1 - Town Panchayath having not caused or permitted pollutants to enter into the lakes cannot be prosecuted under sections 24 and 25 of the Water Act is liable to be rejected and it is accordingly rejected.

13. The next question that arises for consideration is, Whether on account of failure of accused No.1 - Town Panchayath to prevent the pollutants to enter into the lakes and water bodies, whether its official 25 namely accused No.2 is liable to face prosecution for the above offences?

14. In this regard, it is pertinent to note that accused No.2 is prosecuted in his capacity as Chief Officer of accused No.1 -Town Panchayat, T.Narasipura. The allegation made against accused No.2 is that he has committed an offence contravening the provisions of Section 24 and 25 of the Water (Prevention and Control of Pollution) Act, 1974.

15. Undisputedly, the statute provides for vicarious liability on the Head of the Department under the Water Act. In this context, it may be relevant to refer to section 48 of the Water Act which provides that,

48. Offences by Government Departments.- Where an offence under this Act has been committed by any Department of Government, the Head of the Department shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this section shall render such Head of the Department liable to any punishment if he proves that the offence was committed without 26 his knowledge or that he exercised all due diligence to prevent the commission of such offence."

From the above provision, it is clear that where any Department of Government is accused of an offence under the Water Act, only the Head of the Department shall be liable to be prosecuted and punished accordingly.

16. The law on this point is now well settled. It may be useful to refer to a recent decision of the Hon'ble Supreme Court in SHIV KUMAR JATIA vs. STATE OF NCT OF DELHI in Criminal Appeal No.1263/2019 (arising out of S.L.P.(Crl.) No.8008/2018 decided on 23.08.2019. In the said case, a case was registered for the offence under sections 336 and 338 read with 32 of IPC based on the information that one Gaurav Rishi got admitted in Fortis Hospital, Vasant Kunj, vide MLC No.2240 of 2013 with the alleged history of fall from stairs. On investigation, it was found that the injured Gaurav Rishi fell from the terrace of 6th floor to 4th floor of the hotel i.e., Hyatt Regency. The case of prosecution was that terrace was dark and there was no light on the terrace and hotel staff did not stop them from going there. 27 Precisely it is the allegation that there was a lapse on the part of hotel management in taking safety measures for the guests who are allowed to terrace area. The Trial Court having issued summons to the appellants, the same was sought to be quashed before the High Court of Delhi under section 482 of Cr.P.C. In the said proceedings, the High Court considered the case as if the investigation was pending and proceeded on the basis that, to attract the ingredients of section 336 of IPC, an act done rashly and negligently, to endanger human life or personal safety are essential and to attract section 338 of IPC, in addition to the above said acts, additional ingredients of grievous hurt should be alleged and proved. The appellant in the above case was sued on the ground that he was holding the position of the Managing Director. In the absence of any specific allegations of negligence with criminal intent, in that context, the Hon'ble Supreme Court in para 27 and 29 has observed as under:-

27. The liability of the Directors/the controlling authorities of company, in a corporate criminal liability is elaborately considered by this Court in the case of Sunil Bharti Mittal. In the aforesaid case, while 28 considering the circumstances when Director/person in charge of the affairs of the company can also be prosecuted, when the company is an accused person, this Court has held, a corporate entity is an artificial person which acts through its officers, Directors, Managing Director, Chairman, etc. If such a company commits an offence involving mens rea, it would normally be the intent and action of that individual who would act on behalf of the company. At the same time it is observed that it is the cardinal principle of criminal jurisprudence that there is no vicarious liability unless the Statute specifically provides for. It is further held by this Court, an individual who has perpetrated the commission of an offence on behalf of the company can be made an accused, along with the company, if there is sufficient evidence of his active role coupled with criminal intent.

Further it is also held that an individual can be implicated in those cases where statutory regime itself attracts the doctrine of vicarious liability, by specifically incorporating such a provision.

29. By applying the ratio laid down by this Court in the case of Sunil Bharti Mittal it is clear that an individual either as a Director or 29 a Managing Director or Chairman of the company can be made as accused, along with the company, only if there is sufficient material to prove his active role coupled with the criminal intent. Further the criminal intent alleged must have direct nexus with the accused. Further in the case of Maksud Saiyed vs. State of Gujarat & Ors. this court has examined the vicarious liability of Directors for the charges leveled against the Company. In the aforesaid judgment this Court has held that, the Penal Code does not contain any provision for attaching vicarious liability on the part of the Managing Director or the Directors of the company, when the accused is a Company, when the accused is a Company. It is held that vicarious liability of the Managing Director and Director would arise provided any provision exists in that behalf in the Statute. It is further held that Statutes indisputably must provide fixing such vicarious liability. It is also held that, even for the said purpose, it is obligatory on the part of the complainant to make requisite allegations which would attract the provisions constituting vicarious liability.

17. The principles laid down in the above decision, in my view, squarely apply to the facts of the case. Petitioner/accused No.2 being the Chief Officer of Town Panchayath/accused No.1 is liable to be prosecuted for the alleged offences. As a result, petitioner/accused No.2 is liable for prosecution for the alleged offences punishable under sections 24 and 25 of the Water Prevention and Pollution Control Act, 1974 punishable under sections 43 & 44 of the same Act.

Hence, I proceed to pass the following:-

ORDER Criminal Petition filed by petitioner/accused No.2 is dismissed.

Sd/-

JUDGE Bss