ORDER B.M. Gupta, J.

1. This revision has been preferred for impugning the order dated 02.07.04 passed by Chief Judicial Magistrate, Gwalior in criminal case No. 870/02 whereby the learned Magistrate has rejected an application filed on behalf of the petitioners under Section 197 of Cr.P.C. and observed that there is no requirement of sanction before taking cognizance.

2. The facts of the case, as admitted by both the parties are, (1) That, one private complaint was filed by the respondent against the petitioners for the offence punishable under Section 15 and 16 of the Pollution [Control] Act, 1986 [hereinafter it referred to as, The Act) on the allegation that the petitioner no.1 being the Joint Director and Superintendent of J.A. Group of Hospitals, Gwalior and petitioner no.2 being the Dean, G.R. Medical College, Gwalior are public servants and are responsible for dispensation of their duties as per law. At the relevant time, they were required to install an incinerator after obtaining authorization from M.P. Pollution Control Board for disposal of bio medical waste of the hospital. It is also alleged that the petitioners were also required to install water treatment plant for removal of the harmful substances from water. It is further alleged that the petitioners did not comply this direction of the Act, hence, the complaint was filed.

(2) That, the cognizance under aforementioned offence has been taken by the learned magistrate and on account of this a criminal No.870/02 case is pending against them.

(3) That, both the parties that both the officers are the public servants not removable from their posts otherwise under the orders of the Government.

3. Being public servants, the petitioners filed one application under section 197 of Cr.P.C. for discharging them on the ground that no cognizance can be taken against without sanction under Section 197 of Cr.P.C. Vide impugned order, the same was rejected on the ground that provisions of Cr.P.C particularly section 197 is not applicable. Hence, this revision.

4. On perusal of the impugned order it appears that, while highlighting section 24 of the Act, the learned Magistrate has come to the conclusion that the provisions of Cr.P.C. including section 197 Cr.P.C. are not applicable in the present case. Section 24 of the Act goes as under:

24. Effect of other laws--(1) Subject to the provisions of Sub-section (2), the provisions of this Act and the rules or orders made therein shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act.

(2) Where any act or omission constitutes an offence punishable under this Act and also under any other Act then the offender found guilty of such offence shall be liable to be punished under the other Act and not under this Act.

Perusal of section 4 of Cr.P.C. will also be required to appreciate the real controversy, hence the same is also quoted herein below:

4. Trial of offences under the Indian Penal Code and other laws--(1) All offences under the Indian Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.

(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.

On perusal, the mandate of both the provisions is one and the same. No controversy appears in between them. As provided by section 24, inspite of anything inconsistent contained in any enactment (including Cr.P.C), other than this act, provisions of the act and rules or order made therein shall be having over riding effect. Sub section 2 of Cr.P.C. also provides the same. It speaks that all offences under any other law shall be investigated, inquired into or tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the matter or place of investigating, inquiring into, trying or otherwise dealing with such offences. In nut shell, it appears that other offences shall also be investigated, inquired into, tried or otherwise dealt with in accordance with the provisions of Cr.P.C. but subject to the provisions of any special enactment. If any special enactment prescribes a particular way of investigation etc. of the offence contained therein then of course the provisions of that special enactment will have over riding effect over the provisions of Cr.P.C.

5. Now it is to be seen whether any provision in the nature of the provision of section 197 is prescribed under Act. Although, this point does not appear to be raised on behalf of the respondent in the trial Court, nor even in the petition Yet during argument it is contended by Shri Agrawal, on behalf of the respondent, that the provision of section 19 of the Act excludes the application of provision of section 197 of Cr.P.C. As per his contention both the provisions are dealing with taking of the cognizance. To appreciate the contention, perusal of the relevant part of both the provisions will be required, hence the same are quoted herein below:

19. Cognizance of offences - No court shall take cognizance of any offence under this Act except on a complaint made by

(a) the Central Government or any authority or officer authorised in this behalf by that Government; or

(b) any person who has given notice of not less than sixty days, in the manner prescribed, of the alleged offence and of his intention to make a complaint, to the Central Government or the authority or officer authorized as aforesaid.

197. Prosecution of Judges and public servants--(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction

(a) in the case of a person who is employed or, as the case may be was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;

(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State of the State Government.

Provided that where the alleged offence was committed by a person referred to in Clause (b) during the period while a Proclamation issued under Clause (1) of Article 356 of the Constitution was in force in a State, Clause (b) will apply as if for the expression "State Government" occurring therein, the expression "Central Government" were substituted.

(2) ...

(3) ...

(4) ...

It appears that section 19 requires a compliant is to be filed by competent person authorized as mentioned therein, while section 197 requires sanction of the appropriate Govt./authority for prosecuting a public servant. By both the provisions, a bar has been put for taking cognizance on a compliant filed under the act that the Court has to see whether the same has been filed by a competent person as provided under section 19 and at the same time, if on such compliant Court requires to take cognizance against a public servant (but not against any other person) he is also to see as to whether a sanction has been obtained from the appropriate Govt. or the authority as provided under section 197 Cr.P.C. Section 19 creates a check for taking cognizance on such complaint which has been filed by unauthorized person, while section 197 Cr.P.C. creates a check for taking cognizance against a public servant without sanction. Both are different provisions, having different aims. No clash appears in between them. There is no specific provision in the act which create a check for taking cognizance against a public servant without sanction of appropriate Govt. As there is no specific provision prescribing the identical check or prohibiting the provisions of section 197 of Cr.P.C, as per the provisions of section 24 of the Act as well as the provisions of section 4 of Cr.P.C., the provision of Section 197 Cr.P.C. being the general law will be applicable in this case.

6. The order of a Single Bench of Orissa High Court passed in State Prevention and Control of Pollution Board v. Berhampur Municipality and Anr. 1992 Cri.L.J. 2909, as cited by Shri Agrawal, in support of his contention, deals with the provision of section 49 of Water Pollution (Control) Act. Although, similar point was raised and decided and a contrary view has been taken yet, as observed herein above, in my considered opinion both the provisions are different, having no clash in between. The aim of the legislature while enacting section 197 of Cr.P.C. is to protect public servant against false fabulous and malafide criminal cases which are related to the work or act done by them, while discharging their duties as such public servant. In my opinion, the aim of section 19 is not the same. On perusal of Sub Section (2) of Section 19, cognizance by a Court can be taken even on a complaint made by any person who has given notice of not less than 60 days, in the manner prescribed, of the alleged offence and of his intention to make a complaint, to the Central Government or the authority or officer authorized as aforesaid. If a Court is taking cognizance on such a complaint filed by such a person, whether the intention of legislature of protecting the public servants against frivolous prosecution as aforesaid, is fulfilled? The answer will be no. In view of this, the contention of Shri Agrawal does not deserve to be sustained.

7. It is not disputed by the respondent that both the petitioners are public servants not removal otherwise then by the orders of the Government. The omission on their behalf for installation of a incinerator for disposal of bio medical waste and water treatment plant for removal of the chemical substance from the water is directly related and having nexus to their official duties. On perusal of the copies of the letters written on behalf of them dt.8th December, 1999, 22nd November, 2000, 1.6.2000 and 18th February, 2002 indicate that they have written for installation of these plants to the Director, Medical Education, who is the head of the department. While, high lighting the provision of section 17 of the Act, Shri Dudawat has contended that for the offences under the Act, head of the department can only be prosecuted. Other officers are only prosecuted when it is shown that the offence has been committed with the consent or connivance or is attributable to any neglect on the part of any officer than the head of the department. Writing of the aforementioned letters indicate that the petitioners have performed their duties. They have written to the head of the department to sanction fund for installation of the required plants. This act on behalf of the petitioners, also support the contention of Shri Dudawat that the alleged omission is related to their official duties, they were vigilant and informing to the higher authorities for fulfilling the requirement.

8. As discussed herein above, the impugned order having observation of the learned Magistrate that the provisions of Cr.P.C. are not applicable to the present case being erroneous is set-aside. Revision is allowed. Petitioners can be prosecuted after taking required sanction, if required.