The Karnataka State Pollution vs M.K. Gadkar
2022 Latest Caselaw 11376 Kant

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                                                   CRL.A No. 100165 of 2015


                          IN THE HIGH COURT OF KARNATAKA,
                                   DHARWAD BENCH
                      DATED THIS THE 16TH DAY OF AUGUST, 2022
                                          BEFORE
                          THE HON'BLE MR JUSTICE M.I.ARUN

                      CRIMINAL APPEAL NO. 100165 OF 2015 (A)

                   BETWEEN:
                   THE KARNATAKA STATE POLLUTION CONTROL BOARD,
                   REPRESENTED BY ITS REGIONAL OFFICER,
                   (DEPUTY ENVIRONMENTAL OFFICER),
                   SHRI GURUDEVA PRAKASH S/O. MAHADEVAIAH
                   AGED ABOUT 41 YEARS,
                   R/O: KARWAR, UTTARA KANNADA DISTRICT.
                                                            ... APPELLANT
                   (BY SHRI G.I. GACHCHINAMATH, ADVOCATE)

                   AND:
                   SHRI M.K. GADKAR,
                   AGE 62 YEARS, MIUNICIPAL COMMISSIONER,
                   CITY MUNICIAPL COUNCIL, DANDELI,
                   HALIYAL TALUKA, UTTARA KANNADA DISTRICT.
                                                              ... RESPONDENT
                   (BY SHRI VISHWANATH HEDGE, ADVOCATE)

                        THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4)
Digitally signed   OF CR.P.C., PRAYING TO GRANT LEAVE TO APPEAL AGAINST
by VISHAL          THE ORDER OF ACQUITTAL PASSED IN C.C. NO.991/2006
NINGAPPA
PATTIHAL           DATED 27.03.2015 PASSED BY THE CIVIL JUDGE AND JMFC,
                   DANDELI AND TO SET ASIDE THE IMPUGNED JUDGEMENT MADE
                   IN C.C.NO.991/2006 DATED 27.03.2015 PASSED BY THE CIVIL
                   JUDGE AND JMFC, DANDELI AND CONVICT THE ACCUSED FOR
                   THE OFFENCE PUNISHABLE UNDER SECTION 44 OF THE WATER
                   (PREVENTION AND CONTROL OF POLLUTION) ACT AND OTHER
                   PROVISIONS.
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                                       CRL.A No. 100165 of 2015


     THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING.

                      JUDGMENT

1. Aggrieved by the judgment dated 27th March 2015,

passed in C.C. No.991/2006 by the Civil Judge and JMFC at

Dandeli, the instant appeal is filed by the complainant

therein.

2. The complainant - Karnataka State Pollution Control

Board has filed the complaint on the ground that the City

Municipal Council, Dandeli, Haliyal Taluka, Uttara Kannada

District, without treating the sewage water was leaving the

same into the Kali River and has committed the offences

punishable under Sections 24 and 25 of the Water

(Prevention and Control Pollution) Act, 1974 (for short "the

Act, 1974"). The proceedings were initiated against the

accused, who was the Commissioner of the City Municipal

Council, Dandeli from 19.02.2004 to 09.02.2007.

3. For the sake of convenience, the parties are referred

to as per their status before the trial Court.

CRL.A No. 100165 of 2015

4. The complainant to prove its case has examined four

witnesses and got marked Exs.P1 to P26(a). The accused

has examined himself as DW1 and got marked

Exs.D1 to D7. The trial Court based on the complaint and

the evidence let in, framed the following points for

determination:

1. Whether the complaint proved beyond reasonable doubt that the City Municipal Council, Dandeli was discharging the sewage effluents to Kali river without any treatment, without consent of the Board and the constituents are exceeding the standards stipulated by the Board which is violation of Section 25 of the Act and thereby, the accused has committed the offence punishable under Section 44 of the Water (Prevention and Control Pollution) Act, 1974?

2. If so, whether the accused has proved that he exercised all due diligence to prevent the commission of the such offence and therefore, he is not liable for any punishment? &

3. What order or sentence?

The trial Court answered the above points as follows and

passed the following order:

      Point No.1 :     In the affirmative;
      Point No.2 :     In the affirmative; &
      Point No.3 :     as per final order for the following.





                                     CRL.A No. 100165 of 2015


                            "ORDER

Acting under Section 248(1) of Cr.P.C. the accused is hereby acquitted for the offence pu8nishble under Section 44 of the Water (Prevention and Control Pollution) Act, 1974.

His bail bond and surety bond are stands cancelled."

Aggrieved by the same, the instant appeal is filed by the

complainant.

5. The case of the complainant is that, the trial Court

having found that the complainant had proved beyond

reasonable doubt that the City Municipal Council, Dandeli

was leaving the sewage effluents to Kali river without any

treatment, without consent of the Board and the

constituents are exceeding the standards stipulated by the

Board, which is in violation of Section 25 of the Act, 1974,

ought to have convicted the accused herein, who was the

Commissioner of City Municipal Council, Dandeli from

19.02.2004 to 09.02.2007 for violating the provisions of

Section 25 of the Act, 1974, and punish him under Section

CRL.A No. 100165 of 2015

44 of the said Act and that the trial Court erred in not

convicting him.

6. Per contra, the advocate for the accused justifies the

judgment of the trial Court and prays for dismissal of the

appeal.

7. It is noticed that, based on the evidence let in, the

trial Court has come to the conclusion that the sewage

water was being let into the Kali river without due

treatment as required under law by the City Municipal

Council, Dandeli. The question that arises for consideration

is as to whether the trial Court erred in holding the accused

not guilty for the said violation by the City Municipal

Council, Dandeli?

8. Admittedly, the accused was the Commissioner of City

Municipal Council, Dandeli only from 19.02.2004 to

09.02.2007. Though, the City Municipal Council, Dandeli

was required to establish sewage treatment plant, treat the

sewage and only thereafter let it into the Kali river as

CRL.A No. 100165 of 2015

contended by the complainant, it was not doing so even

prior to 19.02.2004 and even after 09.02.2007 and thereby

it is guilty of violating the provisions of the Act, 1974. But

the accused was its Commissioner only from 19.02.2004 to

09.02.2007 and what needs to be considered is as to

whether he exercised all due diligence during his tenure to

have the sewage water treated.

9. Section 48 of the Act, 1974, reads as under:

"48. Office by Government Department.- 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 punishment if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence."

10. Admittedly, the City Municipal Council, Dandeli has to

be considered as part of the Government for the purpose of

Section 48 of the Act, 1974 and the accused is a Public

Servant and he cannot be convicted, if he exercised all due

CRL.A No. 100165 of 2015

diligence to prevent the commission of such offence.

Considering the evidence let in, the accused has been able

to show that, immediately after he came to know about the

offence being committed by the City Municipal Council,

Dandeli, he took steps to have necessary treatment plant

established by writing letters to the concerned departments.

Ex.D1 is one such letter, which is written by him to the

Regional Office, KSPCB, Karwar for establishing sewage

treatment plant. Ex.D5 is the letter written by the Deputy

Commissioner, Karwar to the Directorate of Municipal

Administration, Bengaluru bringing to its notice the

requirement for establishment of sewage plant, as

requested by the accused herein.

11. These facts as well as the oral evidence let in by the

accused goes to show that he exercised due diligence to

have the treatment plant established at Dandeli as soon as

the violation came to his knowledge.

CRL.A No. 100165 of 2015

12. For the said reasons, the trial Court even though it

came to the conclusion that the provisions of the Act, 1974

was being violated by the City Municipal Council, Dandeli,

the accused was able to prove that he exercised all due

diligence to prevent commission of such offence. As rightly

contended by the accused, he does not have the necessary

decision making powers or finance to establish a sewage

treatment plant in the City Municipal Council, Dandeli. He

has to take necessary permissions and sanctions from

various authorities of the Government. Once the violation of

the provisions of the Act, 1974 by the City Municipal

Council, Dandeli is brought to his notice he has taken steps

to correspond with the concerned authorities in this regard.

13. Under the peculiar facts and circumstances of the

case, he cannot be expected to do more and as per Section

48 of the Act, 1974, once the head of department is able to

prove that the offence was committed without his

knowledge or that he exercised all due diligence to prevent

such commission of offence, he cannot be held guilty of the

CRL.A No. 100165 of 2015

offence alleged against him. The trial Court for the said

reason has rightly acquitted the accused. I find no reason

to interfere with the well reasoned order of the trial Court.

For the aforementioned reasons, the appeal being

devoid of merits is hereby dismissed.

Sd/-

JUDGE

Vnp*