Court Cannot Take Cognizance Of Offence U/S. 49 Water Act Unless 60 days Notice Was Given To Accused: Karnataka HC
The Karnataka High Court observed that a court cannot take cognizance of an offence under Section 49 of the Water Act without issuing a notice of 60 days to the accused.
The Court quashed the criminal proceedings against M/S. Siddhasiri Souharda Sahakari Niyamit (petitioner), along with its Director and General Manager for offences punishable under Sections 43, 44 and 47 of the Water (Prevention and Control of Pollution) Act, 1974 (the Act).
A Single Bench of Justice M. Nagaprasanna observed, “Section 49 mandates that no Court shall take cognizance of any offence under the Act except on a complaint made by a Board or any Officer authorized in this behalf. This would not be applicable as there is authorization in the case at hand. Clause (b) of sub-section (1) of Section 49 mandates that unless 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 Board or Officer authorized, no court can take cognizance of the offence.”
Advocate Venkatesh Dalwai appeared for the petitioners, while Senior Advocate K. Shashikiran Shetty represented the respondent.
A complaint was filed by the Karnataka State Pollution Control Board (KSPCB) accusing the petitioners under Sections 43, 44, and 47 of the Act for discharging untreated trade effluents into the Mullamari River and operating an ethanol production facility without adequate waste disposal measures.
Following an inspection by the KSPCB, the petitioners were issued a show-cause notice and later a closure order. The petitioners challenged these orders, and the Division Bench of the High Court stayed the proceedings, allowing the petitioners to submit their reply.
The petitioners argued that the very closure order that formed the basis for the registration of the crime was now effaced by the order of the Division Bench.
The High Court stated, “Though the petitioners have not been completely absolved by the Division Bench, the offence under the Act is completely watered down by the Division Bench.”
The Court explained that Section 49 of the Act began with a non-obstante clause that a court cannot take cognizance of any offence under the Act except when a person against whom cognizance was sought to be taken had been given 60 days' notice and the notice should bear observation that the intention of the one who issues notice is to register a complaint.
Consequently, the Court observed, “Therefore, the learned Magistrate ought to have noticed the fact whether a show cause notice was issued to the accused and 60 days have lapsed after issuance of show cause notice and only on noticing the said fact, the concerned Court would be empowered to take cognizance of the offence.”
Accordingly, the High Court allowed the petition.
Cause Title: M/s Siddhasiri Souharda Sahakari Niyamit & Ors. v. Karnataka State Pollution
Appearance:
Petitioners: Advocate Venkatesh Dalwai
Respondent: Senior Advocate K. Shashikiran Shetty; Advocate A. Mahesh Chowdhary
