TMI Blog2015 (3) TMI 1409X X X X Extracts X X X X X X X X Extracts X X X X ..... knowledge or that in spite of due diligence to prevent the commission of such an offence, the same came to be committed. It is far different from saying that the safeguard provided under the proviso to Section 48 of the 1974 Act would in any manner enable the Head of the Department of the Government Department to seek umbrage Under Section 197 Code of Criminal Procedure and such a course if permitted to be made that would certainly conflict with the deemed fiction power created Under Section 48 of the 1974 Act. There is no specific provision providing for any sanction to be secured for proceeding against a public servant under the 1974 Act. If one can visualise a situation where Section 197 Code of Criminal Procedure is made applicable i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppani, Judicial Magistrate, First Class, Sankeshwar. As the issue dealt with by the Division Bench of the High Court is identical, both the appeals are disposed of by this common order. 4. The Appellant in Criminal Appeal No. 755 of 2010 was holding the post of Commissioner and the Appellant in the case of Criminal Appeal arising out of SLP (Crl.) No. 7732 of 2010 was in the post of Chief Officer Grade II. The question that was posed for consideration before the Division Bench was that both the Appellants admittedly being public servants, the prosecution as against them could not have been lodged Under Section 48 of the Water (Prevention and control of Pollution) Act, 1974 [hereinafter called the '1974 Act']. The said contention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the 1974 Act was mandatory. 6. As far as Section 49 of the 1974 Act is concerned, the counsel contended that though the heading of the said provision states Cognizance of Offences the said Section is mainly intended for the concerned authority to file the case against the accused by placing the complaint before the concerned Court and the prescription contained in the said Section are intended only for fulfilling the said requirement and, therefore, going by the heading of the said Section it cannot be held that the Magistrate can straight away take cognizance of an offence de hors the non-compliance of the requirements Under Section 197 Code of Criminal Procedure 7. As against the above submission, Mr. A. Mariarputham, learned sen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the moment the offence under the 1974 Act is alleged against the Head of the Department of a Government Department. It is a rebuttable presumption and under the proviso to Section 48, the Head of the Department will get an opportunity to demonstrate that the offence was committed without his knowledge or that in spite of due diligence to prevent the commission of such an offence, the same came to be committed. It is far different from saying that the safeguard provided under the proviso to Section 48 of the 1974 Act would in any manner enable the Head of the Department of the Government Department to seek umbrage Under Section 197 Code of Criminal Procedure and such a course if permitted to be made that would certainly conflict with the de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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