'Once Chargesheet Is Filed, Court Has No Option But To Take Cognizance' : Karnataka HC Restores Corruption Case Against CM Yediyurappa

The Karnataka High Court has set aside the order of a Special Court under the Prevention of Corruption Act which dismissed a complaint of corruption filed against Chief Minister B S Yeddiyurappa and former Minister of Large and Medium Scale Industries Katta Subramanyam.

A single bench of  Justice John Michael Cunha, while setting aside the order, directed the special court to take cognizance of the offences made out in the charge sheet against Yeddiyurappa and Subramanyam (named as accused Nos.1 and 2 in the charge sheet) and proceed in accordance with law.

The bench while setting aside the order said "The impugned order being wholly perverse, arbitrary and contrary to law and facts of the case, in my view, cannot be sustained."

The bench observed that the Special Court errred in dismissing the complaint after chargesheet was filed against the accused.

"Once the charge sheet is filed, the Magistrate or the Court has no other option than to take cognizance of the offence alleged in the charge sheet and proceed in accordance with law", the High Court's order stated.

Case Background:

The petitioner, A Alam Pasha, filed a private complaint under section 200 Cr.P.C. requesting the court to take cognizance of the offences punishable under sections 7, 10, 13 and 15 of the Prevention of Corruption Act, 1988 against nine named accused persons.

The Special Judge referred the complaint for investigation by the Superintendent of Police, Lokayukta, under section 156(3) of Cr.P.C. After investigation a final report was submitted before the Special Judge on 21.05.2012, arraying Yeddiyurappa and Subramanya Naidu as accused. Nine other accused were dropped from the chargesheet citing lack of evidence.

In the chargesheet, it was alleged that B.S. Yeddiyurappa, during his CM tenure of 2008-12, illegally de-notified 20 acres of private land from land acquisition proceedings, to give undue favours to private parties, and caused loss to public exchequer by forfeiting service fee of Rs.2,64,00,000 and development fee of Rs.6.00 crores.

Similar allegations were levelled against Katta Subramanya Naidu as well..

In 2016, the Special Judge dismissed the case by saying that the complaint had no allegations against Yediyurappa and Subramanya Naidu.

"There are no allegations in the complaint against the charge sheeted accused B.S. Yeddyurappa and Katta Subramanya Naidu. When there is no allegations made against the charge sheeted accused Nos. 1 and 2 in the complaint and non arriving of the said charge sheeted accused Nos. 1 and 2 in the complaint, this Court is unable to take cognizance of the offence against the charge sheeted accused for the alleged offences."

Submissions of the petitioner:

Challenging the dismissal, the petitioner approached the High Court.

Placing reliance on the decision in the case of HARDEEP SINGH v. STATE OF PUNJAB AND OTHERS, (2014) 3 SCC 92, it was pointed out that "after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of investigation. Such cognizance can be taken under Section 193 Cr.P.C. and the Sessions Judge need not wait till 'evidence' under Section 319 Cr.P.C. becomes available for summoning an additional accused".

Further, it was said "A complaint could be dismissed only under section 203 Cr.P.C. provided the learned Magistrate or the Special Court decides to proceed under section 200 Cr.P.C., whereas, in the instant case, the learned Special Judge himself having directed investigation and having secured an investigation report, he had no other option other than to take cognizance of the offences against the offenders even if they were not named in the FIR."

It was added that an order of dismissal of the complaint has the effect of discharging the accused against whom the charge sheet has been laid by the police thus finally terminating the proceedings and therefore the impugned order is amenable for challenge under Section 397 Cr.P.C.

Submission by Respondents

Senior Advocate Kiran S. Javali, appearing for respondents, submitted that accused Nos.10 and 11 were not named in the PCR or in the FIR registered by police; the investigation was undertaken only against accused Nos.1 to 9; there were no allegations against accused Nos.10 and 11, under the said circumstances, the petitioner has no locus-standi to challenge the order passed by the Special Court when the investigating agency themselves have not chosen to prefer any appeal or revision against the order passed by the Special Court and thus sought to dismiss the complaint.

Prosecution supported the petitioner:

Special Public Prosecutor B.S. Prasad, said the impugned order cannot be sustained under law or on fact; the learned Special Judge while considering the final report cannot dismiss the complaint; the order passed by the Special Judge has the effect of discharging the accused; the impugned order does not reflect any application of mind by the Court.

Court findings:

Firstly, the court said the impugned order has been passed by the learned Special Judge while considering the 'B' Summary report submitted by the Investigating Agency insofar as accused Nos.1 to 9 are concerned.

Referring to the procedure to be followed by the Magistrate or the Court in accepting or rejecting the 'B' summary report, as laid down by the Apex Court in KAMALAPATI TRIVEDI V. STATE OF WEST BENGAL', (1980) SCC (2) 91, the High Court said :

 "As the learned Special Judge has failed to consider the 'B' summary report and has not passed any orders either rejecting or accepting the report filed by the respondent No.13 insofar as respondent Nos.1 to 9 (original accused Nos.1 to 9), the impugned order is liable to be set aside only on that score."

Coming to the issue of chargesheet filed by the police against Yediyurappa and Subramanyam, the bench said

It added "In the instant case, on going through the impugned order, I find that the Special Court was oblivious of the fact that it was dealing with the allegations relating to the violation of the provisions of P.C. Act that was enacted with the avowed object of eradicating corruption in public life."

The court then went on to point to the object of the Prevention of corruption act it said, "It encompasses within its fold not only the public servants but also those who abet and conspire with them in respect of the offences enumerated therein. Though by subsequent amendment to the P.C.Act much greater protection has been provided to the public servants by introducing section 17A of PC Act and allied provisions; but the law as existed required the Special Court to effectuate the object and purpose of the P.C. Act."

It also noted that unlike other criminal courts, the Special Judge manning the Special court constituted under section 3 of the P.C. Act has been invested with the original jurisdiction and the power of Magistrate as well as the Sessions Judge and even the power of the District Judge while exercising the power under The Criminal Law (Amendment) Ordinance, 1944.

The bench also observed that  "under Section 5(1) of the PC Act, the Special Judge could take cognizance of the offences under the Act without the matter being committed to him. Therefore, when a charge sheet is filed before the learned Special Judge alleging commission of cognizable offences under the provisions of the P.C. Act, he has no discretion to choose to ignore the cognisable offence staring on the face of the record and give reprieve to the accused on the flimsy ground that the allegations of the cognizable offences are not made in the complaint or in the FIR."

The court concluded by saying "The reasoning of the Special Judge that there were no allegations in the complaint against the charge sheeted accused B.S. Yeddiyurappa and Katta Subramanya Naidu and therefore, no cognizance could be taken against them being contrary to the settled principles of law, cannot be sustained."

Earlier, Justice Micheal Cunha had dismissed two different petitions filed by Yediyurappa seeking to quash FIRs registered over corruption allegations in relation to land de-notification.

Later, the Supreme Court stayed the arrest of Yediyurappa in the special leave petition filed by him.