Sanction For Prosecuting CM Siddaramaiah In MUDA Case Had "Elaborate Application Of Mind": Governor's Office To Karnataka High Court

The office of the Governor told the Karnataka High Court on Saturday that the sanction granted by the Governor to prosecute Chief Minister Siddaramaiah in the alleged Mysore Urban Development Authority (MUDA) scam was done after "elaborate application of mind", adding that the sanction order had considered everything. 

A single judge bench of Justice M Nagaprasanna was hearing the CM's plea seeking quashing of an order issued by the Governor Thaawar Chand Gehlot granting sanction to prosecute the former in the alleged multi-crore scam relating to MUDA. On August 19, the high court had directed the trial court to defer all proceedings against Siddaramaiah, based on the governor's sanction, till the next date of hearing before the high court.

The matter was kept today for Solicitor General (SG) Tushar Mehta's submissions who appears for the Secretary to the Governor and for submissions by other respondents. 

Preliminary submissions by Solicitor General

Stating that his submissions would be in six compartments, Solicitor General Mehta said, "I would wish to assist milords on...what are the differences between provisions of Section 17A and Section 19 and resultantly the what would be the parameters of Governors power/duty while exercising powers under Sections 17A or 19. Governor's power is akin to what is mentioned by Supreme Court in Lalita Kumari case he has to see whether a prima facie case is made out. Decision of the Governor by way of the office he holds and considering the nature of Section 17A his reasons need not be elaborate; it must reflect application of mind. Next submission is their arguments was in one complaint Governor issued notice and in two he did not".

On the issue of non compliance of natural justice, Mehta said, "At the stage of 17A there is no requirement of principles of natural justice. Non-issuance of notice even in one case would not have cause prejudice". 

For context, Section 17A and Section 19 being referred to are under the Prevention of Corruption Act. Section 17A pertains to Enquiry/Inquiry/investigation of offences relatable to recommendations made or decision taken by public servant in discharge of official functions or duties. Section 19 of the Act is on the necessity of "previous sanction" for prosecution of a public servant. 

The SG thereafter contended that the Governor was to "act in his own discretion" and not on the "aid and advice" of the cabinet/counsel of ministers as the Chief Minister "himself is facing an allegation". 

He said that the petitioner's submission that the mention of Bharatiya Nagarik Suraksha Sanhita (BNSS) vitiates the Governor's decision is to be rejected. He said that suppose IPC offences are mentioned even then the "Governor will only say prima facie criminal offences are made out and it is for Investigating Officer (IO) to decide under what provisions chargesheet if any is to be filed". 

At this stage the high court orally said, "While referring the crime may be noted or may not be noted". To this Mehta submitted IO will decide on the application of provisions of the law after investigation adding that mention/non mention of BNSS or IPC would not vitiate the Governor's sanction/order and would not cause any prejudice to the petitioner with the opportunity to challenge the same. 

The SG further said, "Last, which my learned senior friend (for petitioner) mentioned, the criminal liability of wife cannot be attributed to husband. If that is so then sanction was not required under Section 17A and they should withdraw their petition...What are we arguing for. It is a self defeating suicidal argument".

Mehta then referred to the Governor's file Mehta said that a show cause notice was issued to the CM on July 26. He then submitted, "It is an admitted position that contents of show cause is only about complaint made by (Abraham)". Mehta further referred to documents indicating that petitioner filed replied to show cause notice.

Mehta said that Respondent No. 2 who is the principal secretary placed a note before the Governor.

"He is Secretary to the Hon'ble Governor who I represent. He placed note which states that...the cabinet has to say this along with all evidence–opinion of AG, complaints etc., everything was placed. On 8-08-2024, the Hon'ble Governor directed respondent no 2 (Principal Secretary) to put up the file along with comparative statements of petitions received in relation to grant of sanction–petitions who he understands to be as complaints–reply of CM and decision of cabinet. That you give me in this format and I will make up my mind," Mehta said. 

At this stage the high court orally remarked, "Oh this was done?", to which Mehta said that there an "elaborate application of mind" by the Governor. 

He thereafter continued, "After perusing the file...the Governor then dictates about what is the Cabinet note says, reply of petitioner etc...The note is dictated by him. This comes in the noting file also. The file along with the necessary documents and comparative statements was placed before the Governor for necessary orders. Order for approval for investigation was then passed by the Governor". 

On the Scope of Section 17A PC Act 

Mehta began by submitting that prior to enactment of new amendment to Prevention of Corruption Act, (17A) there was only pre-cognizance sanction. Thereafter on the scope of Section 17A of the PC Act Mehta said that it is "very limited".

"As a Governor i have to first see whether complaint and documents are placed and makes out a cognizable offence. It may result in chargesheet report on 173 or a closure report. But that is not a call he is permitted to take. He cant say that 'I have examined and serious cognizable offence is made out'...He will only go by prima facie case whether it needs to be investigated by an Investigating agency or not....And any order to be passed has to be on application of mind and extent will be on case to case basis and facts of the case," the SG said. 

He thereafter referred to the 2013 Supreme Court decision in Lalita Kumari vs Government of Uttar Pradesh and Others. and said that if a cognizable offence is made out then police officer is duty bound to register the case. Police officers under section 154 are duty bound; same is the function of any approving authority, the SG added. 

On question of reading of principles of natural justice in this aspect, the high court said, "So suggestion if natural justice is to prevail then notice will have to be given before registering FIR under section 154 CrPC".

To this Mehta said, "Kindly consider if my learned friend is right that before granting approval under section 17A PC Act a hearing is required. 17A is Prevention of Corruption offences and applies over the board to every public servant. The moment a notice is to be given there is all possibility that evidence will be lost. That is one more reason not to read herein principles of natural justice under S. 17A...This one more reason why under section 154 CrPC and section 17A PC Act no hearing.

At this stage the High Court orally said, "Except preliminary inquiry that is in 120.1 of Lalita kumari". 

Mehta replied,"Yes but in a given case...Here in S 17A preliminary inquiry is also not contemplated. Only contemplation under S. 17A is whether you find cognizable offence being made out from material on record. Merely because Hon'ble Governor thought it fit to issue notice cause in one case does not necessarily mean that non issuance of notice in another case would vitiate the order". 

On Governor's Application of Mind To Grant Sanction

On the application of mind by the Governor while granting sanction, the SG thereafter referred to a note placed by principal secretary to the Governor on the complaint by TJ Abraham adding that the complainant appeared and was heard by the Governor. Mehta pointed to a cabinet note, and also went through the charts and stated that the Governor dictated his own prima facie conclusions after considering each and every allegation and the reply of the petitioner. 

On whether the Governor was required to take aid of council of ministers for such a sanction, Mehta, referring to the Governor's decision, said, "Article 164 requires, that the Governor would appoint Minister on the recommendation of Chief Minister. This is one of the factors the Governor considered to act on his discretion or aid of Council of Ministers...Something which was unfortunately was argued by petitioner was that private person cannot seek approval...Advocate General had even opined that even private complainant can seek approval. In his opinion he (Governor) says that and he relies upon your lordships judgment. But unfortunately the petitioner continues that it can only be by police officer". 

He further said that the sanction order was passed based on "material available" and while "all findings need not be in the order but it was in the file while considering the material". 

The SG further emphasized that the Governor was "fully justified" in not relying upon the aid and advice of Cabinet because–firstly the Chief Secretary (CS) prepared the note that these are facts of the case; matter goes to Advocate General (AG) for his opinion who takes the facts as they are and adds his opinion judgment etc;  Thirdly the matter is placed before Cabinet which in its 90 page note, "verbatim with comma full stop reproduced" the opinion of AG and CS. 

Pointing to the cabinet's non application of mind Mehta said, "Constitutionally speaking the cabinet is collectively responsible but this is a case of collective non-application of mind. Everyone agreed to something which was pre written page to page. Fourth stage is reply of Chief Minister which is cut- paste from AG, CS opinion and Cabinet note. And in fifth stage, the petition contains those averments, seriatim, page wise...They could have at least used Artificial Intelligence to paraphrase what is being copied".

On the question of providing reasons for the sanction Mehta referred to Supreme Court's decision in Mohinder Singh Gill & Anr vs The Chief Election Commissioner (1977) said, "I cannot file affidavit and supplement it by new reasons. But i can show reasons existed and summary of those reasons forms part of the order.It is not providing reason post decision but showing something which existed". Mehta referred to another Supreme Court decision which said that Natural justice is not a rigid or an inflexible rule. 

On the argument that material has to be considered meticulously while granting sanction, Mehta said that this was "purely executive and administrative order" and need not contain para wise findings as it would be counter productive to very principle of Section 17A. He further said that the sanction order was of six pages and had considered everything.  He further said that the sanction order which was of six pages had considered everything. 

On application of natural justice principle

On whether prior hearing was to be given, Mehta said that by the very "nature of power" under Section 17A PC Act–which is purely executive and administrative in nature, no prior hearing is required. 

Referring to judgments Mehta said,"Principles of Natural justice are not attracted at 17A stage, where you are a suspect. It is not attracted even under stage of Section 19 of the PC Act a higher threshold, where the court is taking cognizance, and therefore the person is an accused...even there you are not supposed to be given (hearing) as it purely executive function, administrative".

"No opportunity of hearing is required before registering an FIR. We are at the Section 17A stage of sanction which is a scenario prior to registering of FIR where is the question of giving a hearing. Hearing not being pre-requisite...When facts are same what is the prejudice caused. Two other persons said the same thing which you were not given but its on the same set of facts, allegations, same beneficiaries...Here no prejudice is caused, even if all three complaints were not given to him and no-show cause notice and order of approval would have  been passed it would have withstood your lordships judicial scrutiny," the SG said while referring to certain other judgments. 

Chief Minister has over arching power

Mehta then referred to Rule 20 of The Karnataka Government (Transaction of Business) Rules based on which he said, "Chief Minister has an overarching power..He is the final authority, and it is not enough that he did not participate in the meeting of cabinet because the process requires his participation. It is he who decides whether to send it to the cabinet. Merely because he abstains from particular meeting would not meet ends of justice". 

He then referred to Rule 28, said that merely because he (CM) was not present at the meeting does not do away with bias because someone whom he nominated presided over the meeting. His representative was chairing the meeting, Mehta said.

"Urban Development Secretary has written a covering letter to the cabinet. In the entire exercise he (Siddaramaiah) is involved," Mehta said adding that in this case the cabinet had taken a "collective view against prosecution without applying mind", disentitling themselves and hence proprietary also demanded that the Governor acts on its own. 

Mehta then referred to the Supreme Court's judgment in A.R. Antulay vs R.S. Nayak & Anr. (1988). The high court orally said that in this case it was said that when it comes to sanction of chief minister the Governor should independently apply its mind

Mehta thereafter referred to the Supreme Court's decision in Nabam Rebia (role of Governor vis-a-vis other constitutional functionaries) and said that the same was in their "favour". On the petitioner's contention that the Governor had acted hurriedly Mehta said that there was no undue hurry and it was not as if the Governor received the complaint today and granted sanction. 

"To say that Friendly Governor or reply are comical does not behoove a constitutional functionary. He (Governor) was seeking information and complainant T J Abraham was examined and then show cause notice was issued," Mehta said. 

At this stage the high court orally asked that whether a decision taken in a "hottest haste will it vitiate the entire thing". To this Mehta said that mere issuance of show cause notice would "not show undue haste" adding that sometimes a delay may result in the allegation of dereliction of his (Governor's) duty.

"I (Governor) have not taken any decision. Im not going into facts, where his role comes, however PC Act architecture is couched. It would be premature for me arrive at any conclusion to record any conclusion and I argue. I (Governor) have only said yes this needs investigation and you investigate," Mehta said and concluded his submissions.

Submissions by complainants 

Thereafter senior advocate Maninder Singh appearing for respondent no. 4 said that his submissions are from the perspective of a complainant who feels "aggrieved by the violation of public trust in democracy".

Singh further said, "The land in question of 3 acres 16 guntas which became part of acquisition process in the year 1992. Any sale of transaction after this is notification issued in 1992 is void. Land acquisition commenced in 1992 and concluded in 1997, and possession taken the revenue records, records MUDA is owner in the year 1998.Compensation is determined, and award is made and first de-notification in 1998. Therefore, why investigation is required because there is a fraud. Any transaction after first land acquisition notification renders it void says SC. Plots developed and sold in 2001 to 2004, on the very same land. This land was never released and it remained in possession of MUDA. In the cabinet note a WP order is cited but particular are not show. Foundation is made to give sites to the petitioners wife". 

Singh said that when the land stood developed till 2004 how in 2004 a sale deed takes place of the Agricultural land. On the court's query how the land became an agricultural land again Singh said, "That is a magic". When the court enquired if there was any order for the same, Singh said that needs to be investigated. 

"When unison replies are given by Cabinet and law authorities how will investigation be done by any state authority. As per Lalitha Kumari case, if the case is ex-facie can be seen on allegation even when Preliminary inquiry is permissible it is not a must. Whether I apply on July 4 or 31 is immaterial because as a citizen I only want an investigation be carried. The court will decide whether approval is needed or not.That can't be read as something comic". 

Pointing to the land in question, Singh referred to a document as per which "14 developed plots of land were now given not less than 55 crore". 

"So this 55 Crore which you have got I ask this question why it should not require investigation. You paid Rs 6 lakh in 2004 in a fraudulent transaction as there was no agricultural land available in the name of the original person. Through this process by relying on a similar case which is not similar at all you have enriched yourself and family of atleast Rs 55 crore," Singh emphasized. 

Singh said that supposing Section17A PC was not there and court was considering plea under its Article 226 jurisdiction then as criminal jurisprudence is locus neutral, the court is fully equipped to pass an order if the court is satisfied that "55 crore is a bounty which is a clear ex facie violation of public trust by public servant". 

Singh further submitted that the sale of the land in question was void as the land vested with the government. He further said that since the "crime is against the society" then everybody has got the "locus standi". 

"...sufficient material has come on record through their notes etc and so investigation is needed. Whatever is applicable I have done so," Singh said. 

Thereafter senior advocate Prabhuling K Navadgi began his submissions for another complainant by stating that Council of Ministers by virtue of the fact they had "become interested in the matter" were disentitled from giving any aid and advise to the Governor.

"Article 163 (Constitution of India) does not bifurcate between council of ministers and Chief Minsiter. It says there shall be a council of minister headed by Chief Minister. Therefore, Governor consulting council of ministers for aid and advise does not arise," he said. 

On the question of Section 17A PC Act, Navadgi said that a on plain reading the provision does not contemplate a notice to a public servant. He thereafter said that in this provision the concept of notice is "conspicuously silent" adding that this was done "consciously" and hence the aspect of prior opportunity to be given is not merited. 

"Concept of notice is not allowed. It would cause prejudice in sanctity of investigation is my submission. When a complaint comes before competent authority there is no right vested with public servant at that stage, he is a person who cannot participate in the proceedings at all. If matter goes before SHO for registration of FIR there also he has no right. At the stage of Sec 17A the public servant has no right to be heard," Navadgi emphasized. 

On the allegation of non application of mind by Governor, Navadgi said through the Governor's notes it can be made out that elaborate considerations were made by him.

"Governor records if the govt is satisfied that investigation is required albeit by a retd judge of HC. The principle he takes a higher is that when a person is accused the investigation should not be at his instance or his choice. When these considerations are taken into account it cannot be said that there is non-application of mind. It is one thing to say Governor should not have acted in this way or not but he has applied his mind. The approval (order) has to be very brief, particularly as SG said when it is been exercised by highest constitutional authority. He (Governor) does not want to prejudge the issue which could influence investigating authority," the senior counsel said.

Thereafter a counsel appearing for another complainant said that a "non existent land subjected to sale deed, subjected to conversion, subjected to be gifted. Then compensation was claimed".

Among the various arguments made he questioned that when land was non existent, how could revenue authorities find an agricultural land to an pass order of conversion. He argued that this land was "purchased by one Mallikarjuna Swamy who is brother-in-law of petitioner (CM)". He then said that a gift deed was made by Swamy to his sister, alleging that the "Gift deed is also fraudulent because he claims he has been paying tax" questioning that for which land was he paying tax for, as it was non existent. 

"De-notification happened in 1998 when petitioner was Deputy CM and even during conversion, spot inspection (of the land) he was Deputy CM. On 23-06-2014, this is during the tenure of petitioner as Chief Minister, an application for compensation was filed by petitioner's wife four years after the gift...compensation for same land encroached by MUDA. On 25-10-2021 another application filed before MUDA reiteration of claim," Counsel said. 

At this stage, the high court orally asked, "you are attributing all this to undue influence of Chief Minister", to which the counsel said that he was.

"I want to conclude by saying that at all the juncture the petitioner occupied cabinet position and can it be said it is coincidence at so many junctures? They want fruit of the crime how can they disown illegalities?Compensation was obtained by loosing nothing", the counsel said while concluding. 

On the counsel's submission that special court may proceed in the matter "subject to the result" of the writ petition, the high court orally said it "wont accept this submission" and that the reason why interim order was granted was because the high court is hearing the matter; and so no subordinate court should proceed and whether or not sanction is to be granted that the high court will decide. 

The high court thereafter listed the matter on September 2. 

Background

The petition challenged the order issued by the Governor on August 17 granting approval for investigation as per Section 17A of the Prevention of Corruption Act and sanction for prosecution as per Section 218 of the Bharatiya Nagarik Suraksha Sanhita (BNSS). The CM's plea claimed that the sanction order was issued without due application of mind, in violation of statutory mandates, and contrary to constitutional principles, including the advice of the Council of Ministers, which is binding under Article 163 of the Constitution of India. It is claimed that the impugned order of sanction is tainted with mala fides and is part of a concerted effort to destabilize the duly elected government of Karnataka for political reasons.

Case title: Siddaramaiah AND State of Karnataka & Others.